Why I Am Opposed To The Death Penalty

I am opposed to the death penalty in all cases. Period.

I have many reasons. Here are a few of them.

First and foremost, I oppose it because it is immoral. That it is imposed following a jury trial and appellate review, does not wash the defendant’s blood off the jury’s hands and, by extension, our hands because state sanctioned premeditated murder is still premeditated murder. No government ever should be in the business of killing its own people.

Second, death penalty cases typically cost more than three times the cost of incarcerating a defendant to life without possibility of parole.

Third, the death penalty has no deterrent effect. It does not reduce homicide rates. In fact, the opposite is true. Homicide rates are highest in the states that have a death penalty and lowest in the states that do not have a death penalty.

Fourth, our criminal justice system is so infected with racism, corrupt, and broken that it is impossible to know for certain if any given defendant committed the crime charged and, if he did, whether he deserves the death penalty, as opposed to life without parole.

Most people do not know that under our laws there is no murder, however heinous or depraved, that automatically results in a death sentence. When a jury convicts a defendant of a death eligible offense, the case proceeds to a sentencing phase in which the jury ultimately must decide whether the prosecution proved beyond a reasonable doubt that the aggravating evidence (typically the murder and the defendant’s prior record, if any) so outweighs the mitigating evidence (evidence about the defendant and his role in committing the murder) that the defendant should forfeit his life. Assuring consistency that similarly situated defendants convicted of committing similar murders are consistently sentenced to life without possibility of parole instead of death, or vice versa, has proven to be impossible within states, let alone between states.

In Callins v. Collins, 510 U.S. 1141 (1994), Justice Harry Blackmun dissented from the United States Supreme Court’s denial of review in a death penalty case stating,

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

He concluded,

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it—and the death penalty— must be abandoned altogether.” Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (Marshall, J., concurring in judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Justice Blackmun was a conservative Republican who believed strongly in the death penalty when he was appointed to the Supreme Court. As you can see, he finally reached the conclusion that it is impossible to fairly and equitably decide who lives and who dies. I reached the same conclusion, based on my 30 years of experience as a lawyer specializing in death penalty defense and forensics.

Post navigation

One Response to Why I Am Opposed To The Death Penalty

Having come upon this excellent article very belatedly, I would like simply to add one small correction about Justice Blackmum’s personal views about the death penalty when he came to the Supreme Court, which make his evolution and eventual conclusion that the death penalty is unconstitutional as well as bad public policy all the more poignant.

While Justice Blackmun was seen upon his appointment to the Supreme Court as Chief Justice Burger’s “Minnesota Twin,” i.e. a conservative attuned to the Nixon Administration’s agenda, on the death penalty his stance was not one of enthusiastic support but of personal “agony.”

A critically important source for his attitudes in those early years as a Justice are the opening sentences of his dissent in Furman v. Georgia, 408 U.S. 238, 405-407 (1972). In a 5-4 decision, the majority of the Court held either that the death penalty was unconstitutional in itself (Justices Marshall, Brennan); or else that, as administered in an arbitrary, capricious, and very possibly racially or economically discriminatory way, it violated the standards of the Eighth Amendment (Justices Douglas, Stewart, and White). The result, as determined by this three-judge plurality, was to overturn all existing federal and state death penalty statutes while leaving open the question of whether or how a constitutional death penalty statute might be drafted.

Indeed Judge Blackmun was a dissenter from this holding of unconstitutionality, voting to affirm the constitutionality of the death penalty laws under attack (together with Chief Justice Burger and Justices Powell and Rehnquist).

However, his opening words show that his “training” as a jurist from Minnesota militated against the death penalty, so that for him in 1972 it was an exercise in what he saw as judicial and constitutional restraint. And his words still express the harm that the death penalty system inflicts on those who participate in it:

“Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experience, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of `reverence for life.` Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments.”

So Justice Blackmun’s evolution involved not his personal and passionate opposition to the death penalty, but his recognition reached over the next 22 years that not only was the death penalty morally wrong and bad policy, but it was also (especially as regulated, or increasingly deregulated, by the Court) unconstitutional, just as the Furman majority had concluded.